Subjects

Tuesday, November 13, 2012

Reprise - Giving Thanks

Henry Green and Helen Kinney

Two Stalwart Delegates to the 1970 Illinois
Constitutional Convention

We need to recall and appreciate that Illinois is one of only 10 states in the nation that has a pension protection clause ratified in its state constitution. The 40 carefully crafted words created for the 1970 Constitutional Convention have thus far prevented the wholesale unraveling of our pensions under the guise of "pension reform" or "pension stabilization." We need to give thanks and remembrance during this time of year to two indispensable and stalwart persons who led the way for the protection of hundreds of thousands of current public-sector workers.

Without Henry Green’s and
Helen Kinney’s collective foresight, wisdom and prescience of likely future
political irresolution, the members of the five retirement systems in Illinois
could already have suffered the fate of other public employees in some other
states across the United States (Minnesota, Colorado, Rhode Island - to name a
few). Both individuals were delegates to
the Constitutional Convention of 1970, and Mr. Green was the primary sponsor of
Article XIII, Section 5, “the Pension Clause,” which states that “membership in any pension or retirement
system of the State, any unit of local government or school district, or any
agency or instrumentality thereof, shall be an enforceable contractual
relationship, the benefits of which shall not be diminished or impaired.” Ms. Kinney was the secondary voice behind
this attempt to insert into a constitution, unchanged for one hundred years, a
new guarantee of retirement security for those who toiled for the state.

Prior to their efforts, pension
rights were dependent upon whether one’s pension plan was compulsory or optional. In the former, a person signed on to the
retirement program offered at that point in time by the company, state, or
organization. In that sense, according
to one judicial review, “pension benefits in mandatory plans [were] mere
gratuities… springing from the appreciation and graciousness of the sovereign”
(Handbook of Illinois Pension Case Law: Illinois Committee of Government
Finance and Accounting, January 2008).
In other words, as mere statutes, compulsory pensions could be amended,
repealed or ignored by an act of the legislature in Illinois. On the other hand, later rulings by the
Illinois Supreme Court found that when a public pension was optional, the
employee’s right to receive later benefits was a contractual certitude.

After 1970, and the adoption by
the people of the State of Illinois of the new Constitution and Article XIII,
Section 5, the issue of a reduction in pension payment due to a disability was
brought before the courts (Kraus vs. Board of Trustees 1979). The court, led by Justice Stamos, relied
heavily upon the transcripts and comments of delegates Henry Green and Helen
Kinney in order to discern their intent in the original drafting of the
“Pension Clause.”

According to conversations and
notes by Henry Green, “The underlying
purpose of the pension clause was ‘to provide public employees with a basic
protection against abolishing their rights completely or changing the terms of
their rights by reducing their benefits after they had already embarked upon
employment’” (The Illinois State Pension Crisis: Secure Retirement for Public Servants at Risk). Green had admitted that he “promoted the pension promise, which was
based on a 1938 amendment to the New York State Constitution because of
concerns raised by university employees who had lost ‘faith in the ability of
state and local governments to make benefit payments.’”

Helen Kinney, later to become a
distinguished judge in DuPage County, was more direct: “Benefits not being diminished really refers to this situation: If a police
officer accepted employment under a provision where he was entitled to retire
at two-thirds of his salary after twenty years of service, that could not
subsequently be changed to say he was entitled to only one-third of his salary
after thirty years of service, or perhaps entitled to nothing. That is the thrust of the word
‘diminished.’…It is simply to give them a basic protection against abolishing
their rights completely or changing the terms of their rights after they have
embarked upon the employment – to lessen them” (IEA Fact Sheet: Reducing
Pension Benefits for Current Educators, 15 Feb 2011).

According to Eric M. Madiar,
Chief Legal Counsel to Illinois Senate President John Cullerton and
Parliamentarian of the Illinois Senate: “The
Pension Clause’s plain language reveals that an employee’s contractual rights
exist and are legally secured at the time of membership, and those rights
cannot be unilaterally reduced or voided thereafter. Nowhere does the Pension
Clause limit protection, as Sidley claims, to only ‘benefits that were
previously earned.’ To reach Sidley’s conclusion, the provision would need to
add the word ‘earned’ or ‘accrued’ before the word ‘benefits’ as is the case
with the Hawaii and Michigan Constitutions. Distilled to its essence, Sidley’s
construction ignores the Pension Clause’s plain language, defies common sense
and logic, and adds limitations where none exist” (Is Welching on Public Pension Promises an Option for Illinois? An Analysis of Article XIII, Section 5 of the Illinois Constitution).

Finally, the Civic Committee of the Commercial Club of
Chicago’s legal advisors and members (Sidley Austin) argue that two voices of
the many delegates involved in the drafting of the Illinois Constitution do not
speak for the entire body of delegates.
We might ask what about the endorsement of both Republican and
Democratic parties in 1970? What about
the more than one million voters who ratified it? “While
welching on its pension obligations is not an option for Illinois, legitimate
contract principles provide a solution to mitigate this crisis. The Pension
Clause will become a ‘suicide pact’ only if individual citizens are purely
self-interested and admit no obligation to the common good. By adopting the
Clause, the drafters and voters weighed, measured, and found wanting the
current claim that it is unfair to pay these pension obligations. Public
employees have paid their required fair share of pension costs; it is incumbent
on the State to meet its end of the bargain” (Madiar).

As the year turns once
again, now 43 years later, all public employees in the State of Illinois need
to pause and give thanks to these two friends of labor, advocates of a legal promise,
and sentinels of workers’ respect and rights.
Thank you, Henry Green and Helen Kinney.

Photos:

Henry
Green – Courtesy of the archivists at Parkland College, of which Henry Green
was a founder.

Helen
Kinney – Courtesy of Women’s Bar Association of Illinois. She was the first woman to be appointed to
the bench in DuPage County.

We should be able to assume most legislators understand the concept of justice and that lawfulness demands that people keep their covenants with one another. No justice is accomplished when subordinating or diminishing public employees’ rights on account of decades of legislators’ negligence, irresponsibility and corruption.

To possess a right to a promised benefit, such as a pension, is to assert a legitimate claim with all Illinois legislators to protect that right. There are no rights without obligations. They are mutually dependent. Fulfilling a contract is a legal and moral obligation justified by trust among elected officials and their constituents.

The significant issue of today’s proposed so-called “pension reform” is the relationship between public employees’ rights to constitutionally-guaranteed, earned benefits and the legislators’ obligation to safeguard those promises.

An unconscionable constitutional challenge of those rights and benefits generates a serious threat to their secure sense of worth as citizens and creates the unfair possibility for an economic disadvantage for a particular group of people and their families. This can never be legally or morally justified.

All citizens of the State of Illinois have legal justification for their rights and benefits. The foundation of their rights and benefits is the State and U.S. Constitutions that directly support any claims against them. Moreover, State contracts are protected by the federal government. Understandably, the 5th and 14th amendments of the United States Constitution protect due process of law.

It’s evident the policymakers of Illinois are attempting to break their contracts with their employees by calling it “pension reform.”

For an analysis: http://teacherpoetmusicianglenbrown.blogspot.com/2012/05/sb-1673-is-without-legal-and-moral.html

About Me

I am a retiree, political activist, social advocate and community volunteer. I taught at Lyons Township High School in LaGrange for 34 years in the Language Arts classroom and worked as an administrator for several years. My current avocations include various community outreach and assistance programs. Having benefitted from employment in a collegial, reflective teaching environment that encouraged dedication and professionalism, I continue to seek the promotion of education at all levels as a long-term effort combining talent, perseverance, commitment, and constant professional growth - not a blind adherence to a business model of measured production.

Copyrights & Fair Use

This blog contains copyrighted material the use of which has not always been specifically authorized by the copyright owner. I am making such material available in my efforts to advance understanding of issues vital to a democracy. I believe this constitutes a “fair use” of any such copyrighted material as provided for in section 107 of the U.S. Copyright Law.